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Research On The Power Of Sentencing Proposal Of Procuratorial Organs

Posted on:2011-04-09Degree:MasterType:Thesis
Country:ChinaCandidate:W LiFull Text:PDF
GTID:2166360305957080Subject:Procedural Law
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In recent years, in order to promote judicature fair, obtain the public-spirited axiom, some people's office of the public prosecutor continuously develop the experimental unit task of sentencing proposal of procurator. What is the meaning of the sentencing proposal of the procurators, whether the sentencing proposal of procurator has the san school the groundwork and how to use the power have been discussed for many years by a lot of scholars? Text at comparison and drew lessons from the foundation of people of the past's standpoint up, while investigating the hypothesis of the domestic and international power of sentencing proposal of procurator exercise circumstance, versus our country sentencing proposal of procurator that the route of setting up of power advanced quest.This article has five chapters:The first chapter is about the general theories concerning the sentencing proposal system. Sentencing proposal should be submitted to the court for prosecution conviction and sentence on the defendant's activities is available throughout the proceedings a claim. It has four properties: First, the sentencing proposal is part of Public Prosecution. Second, the sentencing proposal is a procedural right and not to be decisive. Third, the sentencing proposal is a claim, does not have finality. Sentencing proposal has a reasonable basis. First, the sentencing proposal is the essential requirement of public prosecution. The right to procedural due prosecution, so the method of participation should make sentencing recommendations in court regarding sentencing debate by the prosecution and defense, and ultimately by the Court to make referee. That both the prosecution in criminal proceedings on behalf of countries to participate in the whole process without a final decision entities results. Second, the sentencing proposal is a necessary requirement for legal structure. The public prosecutor in criminal proceedings should be initiated complaints, this complaint should include whether the content of crime, the severity and final sentencing range. So the court can really follow the principle of non-suit in the trial, and can really maintain the court's neutrality, and will not in the case of unrestricted exercise of national jurisdiction. Third, the principle of separation of powers requires. One of the purposes of establishing the system is through the action mode of separation of powers, so that the judges and the prosecutors can limit each other to protect the interests of objective and impartial exercise of judicial power. Fourth is the requirement of the principle of open trial. When the prosecutor has the right of Sentencing, sentencing this procedure can be the case in public, by the prosecution and defense debated in court for sentencing, the judge can be according to the views of both parties draw their own conclusions. This makes all of the Criminal Conviction and Sentencing of transparency, and this is the real line with the requirements of an open trial. Sentencing proposal also has important value, including: first, the sentencing proposal is to promote procedural justice motivation. Second, the sentencing proposal can save judicial resources and increase efficiency. Third, the sentencing proposal to the legal supervision, curb judicial corruption.The second chapter is: Related systems Compare. As we all know, common law and civil law legal systems are very different, so this part of the common law and civil law to the relevant state separate from the system introduced for later comparison. First, the United Kingdom, the United Kingdom prosecutor did not actually sentencing proposal, but the sentencing recommendation system has existed through the following ways: First, the Registry of the Court by the law and order make sentencing recommendations. Second, sentencing recommendations made by the probation officer. In addition, the Steering Committee of the United Kingdom there is a penalty. Despite the small number of its recommendations, the scope is not big, but it still enjoys some of the sentencing proposal. Second, the United States, the United States occurred in the sentencing recommendation system after the respondent guilty of the procedure and is found guilty after trial, sentencing procedures, but unlike Britain, many of the main particular, the Prosecutor may submit sentencing recommendations. First, the prosecutor has the right to sentencing recommendations. Second, the jury sentencing procedures in death penalty cases can make sentencing recommendations. Finally, a similar situation with England is also the sentencing recommendations made by the probation officer. The civil law was selected for France and Germany was introduced. First, France, in France, the prosecutor based on safeguarding the interests of society or public interest duty, you can publish on the defendant guilty, not guilty and the sentence imposed for a variety of views. In addition, prosecutors can also follow the principle interest of the community asking for immunity from prosecution to the accused without the accused guilty verdict. If the defendant is found guilty, the prosecutor can ask the court to declare the defendant to remove all penalties, or to postpone declaration of the penalty. Second is Germany, the German prosecutor general in the three cases use sentencing recommendations: first, the general procedure in criminal sentencing recommendations made. Second, the punishment so that the exercise of sentencing proposal process. Third, there is a similar plea bargaining process in sentencing proposal. The situation after a brief introduction, compared the system of two legal systems, and its reference were discussed. Building on our system for reference: First, sentencing recommendations could not stand alone, must be compatible with other systems to achieve their goals. Second, the sentencing recommendations of the set should be flexible. Lastly, the sentencing recommendation set has its legal basis.The third chapter is sentencing proposal status in China. China's sentencing recommendation system is in practice and trial preparation. The Supreme People's Court's "the third five Reform Outline" points at more clearly "regulate the discretion of the sentencing court into the process of developing" people's court sentencing procedures guidance ". Sentencing recommendations for the implementation of this increase in a number of favorable conditions, the country has more than 100 courts have implemented and the reform is gaining momentum. But at the same time, sentencing and conviction has always been one, not separate, and how to regulate sentencing, to reduce bias and sentencing imbalance, we still has no "sentencing guidelines." Therefore, the proposed penalty wants be implemented, there are still many difficulties to overcome.The fourth chapter: Design and Implementation of the proposed penalty. First of all, to follow the principles of objectivity, reasoned principles, accuracy and flexibility of combining the basic principles, followed by the primary responsibility for the case of the Chief Prosecutor, as proposed by the principal, the third is clearly the time, the application of summary procedure Summary Procedure, or a defendant guilty of the cases can be made more clear in the indictment, sentencing recommendations, the use of ordinary trial proceedings, the prosecution opinion published in the prosecutor made sentencing recommendations. Fourth, the right to designate the scope of the proposed penalty, the fifth is a sentencing proposal should the proposal with the same conviction, a judge fully considered before the decision to do part of the protest should be under one of the prosecutors. The sixth is to the right of the sentencing recommendation to limit itself. Seventh, this chapter highlighted the mobile sentencing recommendation system, that in criminal proceedings, the prosecution based on the defendant's guilty plea attitude to sentencing recommendations in court to give prosecutors the power to change sentencing recommendations for the sudden emergence trial hair loss, to adjust to the sentencing recommendations, efficiency of the proceedings, to save judicial resources. Chapter sentencing proposal related to supporting the system. To achieve the sentencing proposal, it is necessary to establish uniform standards of sentencing recommendation. Followed by the discovery system, the Prosecutor made a sentencing recommendation, it must explain the reasons for such a proposal, but the punishment fits the crime evidence is particularly important at this time. Meanwhile, the defense to defend accordingly, if not prior knowledge of the evidence, it is difficult to make a targeted defense; it is difficult to put forward a related question. Therefore, only the establishment of related discovery system, sentencing the proposed system can be successfully constructed. Finally, establish the system of not to adopt sentencing recommendations. If the judge did not adopt the Prosecutor's sentencing recommendation, it must give reasons in writing, which not only explain to the prosecutors, but also to the defendant and the public, so as to really make sentencing more transparent procedures, is no longer a judge one thing, it can really judge the discretion to limit the role.
Keywords/Search Tags:Prosecution, Sentencing Proposal, Power Constraints, Mobile Sentencing Recommendation, Uniform Sentencing Standards
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